april7overh - 1 Judicial Justifications: Some Examples...

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Judicial Justifications: Some Examples Precedent/stare decisis •Expectation of Consistency can be a check on judge’s personal values •Commitment to Consistency provides guidance to actors in other branches- e.g., police on searches and seizures. •Limit I: Judges have to decide whether a precedent applies •Limit II: Supreme Court can overturn precedents. Intent of the Framers/Original Meaning/Originalism •Compelling and common sense way to interpret a text. • Advertised by proponents as a way of limiting discretion of judges Limits of Originalism •Framers were a collective body- not a single soul. Can be very difficult to gauge their intent or meaning. •Framers did not reach collective consensus on many important issues. •Some amendments dramatically alter framers’ original framework, but do that without explaining how to reconcile or synthesize. •Judges are often very lousy historians. •Supposed originalists on today’s Court abandon originalism when it conflicts with their political ideologies. •Originalism best understood as rhetorical tool of persuasion rather than a description of how judges do or should make decisions. When persuasion fails. •Supreme Court does not have power to do things on its own. •Influence of Court is not automatic. Court depends on cooperation of other branches. •Other branches have many weapons for controlling the Court in cases of real conflict. •Supreme Court influence will depend in part on perceptions of the legitimacy of the Court’s decisions. History: How did court get the power of judicial review? •Article III? Constitutional text not specific. •The Marbury v Madison (1803) myth. •Reality: Use of Judicial Review by Court Developed and Expanded Gradually over two centuries as Court’s prestige has grown. 1
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INCORPORATION OF THE BILL OF RIGHTS •INCORPORATION: The process though which Court applies the rights protections in the Bill of Rights to state governments, not just the federal government. History- Pre-Civil War: Bill of Rights restricted only the Federal Government, not the states. •Madison- Proposed an amendment to provide protection against states for core rights, but it was rejected. Barron v Baltimore
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april7overh - 1 Judicial Justifications: Some Examples...

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